Vimalakumary @ Kumary vs State Of Kerala
2021 Latest Caselaw 13989 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
  WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                      CRL.A NO. 1766 OF 2006
  AGAINST THE ORDER/JUDGMENT IN SC 943/2006 OF ADDITIONAL
    SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES),
                       KOTTARAKKARA, KOLLAM
APPELLANT/S:

         VIMALAKUMARY @ KUMARY
         D/O. RAJAMMA, PARAVILA VEEDU,, OTTAKKAL MURI,
         THENMALA VILLAGE, KOLLAM DISTRICT.

         BY ADVS.
         SRI.PAULY MATHEW MURICKEN
         SRI.JE VARGHESE FRANCIS



RESPONDENT/S:

         STATE OF KERALA
         REP.BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM.




OTHER PRESENT:

         SRI. M.S. BREEZ (SR.P.P)




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
07.07.2021,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl.A No.1766/2006


                            -2-




                     K.BABU, J.
            =========================
                Crl.A No.1766/2006
            ==========================
         Dated this the 7th day of July, 2021

                          JUDGMENT

Aggrieved by the judgment dated

23.08.2006, passed by the learned Additional

Sessions Judge (Abkari), Kottarakkara, in

S.C.No.943/2006, the accused has preferred

this appeal.

2. The trial court convicted the accused

for the offences punishable under Sections

55(a) and 55(i) of the Abkari Act.

3. The prosecution case is that on

18.11.2005 at 7.20 p.m., the accused was

found in possession of 1.750 ml of illicit

arrack for sale in two bottles.

 Crl.A No.1766/2006







      4.    After          completion                of        the

investigation,         final         report    was     submitted

against       the     accused          for      the       offences

punishable under Sections 55(a) and 55(i) of

the Abkari Act, before the Judicial

Magistrate of First Class-I, Punalur. The

case was committed to the Sessions Court,

Kollam from where it was made over to the

Additional Sessions Court (Abkari),

Kottarakkara.

5. On appearance of the accused charges

were framed against her for the offences

punishable under Sections 55(a) and 55(i) of

the Abkari Act. The accused pleaded not

guilty and therefore, she came to be tried

by the learned Additional Sessions Judge for Crl.A No.1766/2006

the aforesaid offences.

6. The prosecution examined PWs 1 to 4

and proved Exts.P1 to P6 and MOs1 to 3.

7. After closure of the evidence on

behalf of the prosecution, the statement of

the accused under Section 313 Cr.P.C was

recorded. She pleaded innocence. The trial

court heard the matter under Section 232

Cr.P.C. and found that there is evidence

against the accused and hence she was called

upon to enter on her defence and to adduce

evidence, if any, she may have in support

thereof. The learned trial court, after

hearing arguments addressed from both sides,

found that the accused is guilty of offences Crl.A No.1766/2006

under Sections 55(a) and 55(i) of the Abkari

Act and she was convicted thereunder. She

was sentenced to undergo simple imprisonment

for a term of one year each, and to pay a

fine of Rs.1,00,000/- each, under Sections

55(a) and 55(i) of the Abkari Act.

8. Heard Sri.Pauly Mathew Muricken, the

learned counsel appearing for the appellant

and Sri.M.S.Breez, the learned Senior Public

Prosecutor appearing for the respondent.

9. The learned counsel for the appellant

canvassed the following grounds to challenge

the impugned judgment:

a) The delay in producing the

properties before the court has not

been properly explained.

Crl.A No.1766/2006

b) The prosecution failed to

establish the identity of the person

who was allegedly possessing the

contraband substance at the scene of

occurrence.

c) The prosecution has not succeeded

in establishing that the articles

said to have been seized from the

place of occurrence ultimately

reached the hands of the Public

Analyst at the Chemical Examiner's

laboratory.

10. The learned Public Prosecutor, per

contra, submitted that the prosecution could

well establish the charges against the

accused.

Crl.A No.1766/2006

11. The only point that arises for

consideration is whether the conviction

entered and the sentence passed against the

accused are sustainable or not.

THE POINT

12. PW4, the Sub Inspector of Police,

Thenmala, detected the offence. PW4 gave

evidence that on 18.11.2005 in the evening,

while he was on patrol duty, along with PW3

and other police constables, the accused was

found engaged in the sale of illicit arrack

near the residence of one Mr.Rajan, Saranya

Bhavan at Ottakkal. PW4 further stated that

on seeing the police party, the accused ran

away from the scene of occurrence after

leaving the contraband articles. According Crl.A No.1766/2006

to PW4, he had previous acquaintance with

the accused and he could identify her. PWs1

and 2, the independent witnesses, did not

support the prosecution case. PW3, the

Police Constable who had accompanied PW4

supported his version. PW4 conducted

investigation and submitted final report.

13. The learned counsel for the appellant

contended that the delay in producing the

articles allegedly seized from the place of

occurrence has not been satisfactorily

explained. The alleged seizure was on

18.11.2005. Ext.P3, the list of properties

sent to the Magistrate, shows that the

properties were produced before the court Crl.A No.1766/2006

only on 21.11.2005. PW4 also admitted that

the properties could be produced only on

21.11.2005. He explained that on 19.11.2005,

he had produced the properties before the

court, but the same were not received. But

no convincing material has been produced in

the court to show that the properties were

produced in the court on 19.11.2005. The

further explanation of PW4 is, that the

properties were in his safe custody till

they were produced before the court on

21.11.2005, which is no way a satisfactory

explanation for the delay in production of

properties.

14. On the question of delay in

production of the properties, the Division Crl.A No.1766/2006

Bench of this Court in Ravi v. State of

Kerala & another (2011(3) KHC 121) held thus:

"8. We therefore, answer the reference as follows:

(1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate "forthwith" either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay.

There should be explanation for the delay when there is delayed production of the property." (Emphasis supplied)

15. The Division Bench held that

production of the property before the court

should take place without unnecessary delay

and there should be explanation for the

delay when there is delayed production of Crl.A No.1766/2006

the property. In the instant case I have

no hesitation to hold that there was no

satisfactory explanation for the delay in

production of the property. The unexplained

delay in the production of properties would

lead to the conclusion that tampering with

the samples could not be ruled out.

16. The learned counsel for the

appellant further contended that the

prosecution failed to establish the identify

of the person, who was allegedly possessing

the contraband substance at the scene of

occurrence. The time of occurrence is 7.20

p.m. The official witnesses, who supported

the prosecution, gave evidence that they

had seen the accused from a distance of Crl.A No.1766/2006

about 20 meters. PW3, the police constable

who had accompanied the detecting officer,

has no case that he had any previous

acquaintance with the accused. PW4, while

giving evidence, stated that he had previous

acquaintance with the accused. Both of them

deposed that they had no opportunity to see

the accused after the incident. Both of

them identified the accused before the court

approximately after one year.

17. In Ext.P1 seizure mahazar, PW4 had

not stated that he had any previous

acquaintance with the accused. On the other

hand PW4 has specifically stated in Ext.P1

mahazar, the contemporaneous document

evidencing seizure, that he verified the Crl.A No.1766/2006

identity of the person who was in possession

of the contraband substance at the scene of

occurrence from others. The credibility of

the version of PW4 that he had previous

acquaintance with the accused is doubtful.

Hence, the evidence given by PW4 to the

effect that he had previous acquaintance

with the accused is not acceptable. It is

well settled that the substantive piece of

evidence of identification of an accused is

the evidence given by the witness during the

trial. Where a witness identifies an accused,

who is not known to him in the court, for the

first time, his evidence is absolutely

valueless unless there has been a previous

test identification parade to test his Crl.A No.1766/2006

power of observation (vide Jameel v. State

of Maharashtra [AIR 2007 (SC) 971],

Raja v. State by Inspector of Police

[AIR 2020 (SC) 254], Kanan and Others

v. State of Kerala [AIR 1979 (sSC)

1127], State (Delhi Administration) v.

V.C. Shukla and another [AIR 1980 (SC)

1382], Mohanlal Gangaram Gehani v.

State of Maharashtra [AIR 1982 (SC)

839], Mohd. Abdul Hafeez v. State of AP

[AIR 1983 (SC) 367].

18. In the instant case, the official

witnesses never had an opportunity to see

the accused after the incident. The incident Crl.A No.1766/2006

occurred at 7.20 p.m. Since the official

witnesses including PW4 had only a feeting

glimpse of the person who ran away from the

scene, even if the evidence of PW4 that he

had previous acquaintance with the accused

is accepted, the possibility that he

committed some mistake in identifying the

accused cannot be ruled out. This is more

so when PW4 failed to give any identifying

features of the person who ran away from the

scene, in Ext.P1 seizure mahazar or in any

of the contemporaneous documents. The

resultant conclusion is that the prosecution

failed to establish the identity of the person

who was allegedly possessing the contraband Crl.A No.1766/2006

substance at the relevant time.

19. The learned counsel for the

accused further contended that the

prosecution failed to establish that the

contraband substance allegedly recovered

from the place of occurrence ultimately

reached the chemical examiner's laboratory

for the following reasons:

i. PW4, the detecting Officer and PW3,

who had accompanied him, have not given

evidence as to the nature and description

of the seal affixed on the sample bottle.

ii. Ext.P1 seizure mahazar, the

contemporaneous document evidencing

seizure, does not contain any narration

as to the nature and description of the Crl.A No.1766/2006

seal used.

iii. Ext.P4, copy of forwarding note,

does not contain the specimen impression

of the seal and the name of the official

who received the sample bottle from the

court for delivering the same to the

chemical examiner's laboratory.

       20.        I        have          gone      through        the

depositions           of    the   official         witnesses      and

Ext.P1 mahazar.              PW4, the detecting officer

and    the    other         official            witness    who    had

accompanied him had not given evidence as to

the nature and description of the seal

affixed on the bottle containing sample.

Ext.P1 seizure mahazar does not contain the

specimen of the seal stated to have been Crl.A No.1766/2006

affixed on the bottle containing the sample.

21. In Bhaskaran v. State of Kerala and

another (2020 KHC 5296), while considering

a case in which the nature of the seal used

was not mentioned in the seizure mahazar and

the detecting officer failed to give

evidence as to the nature of the seal, this

Court held thus:

"21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v.

State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will Crl.A No.1766/2006

not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)" (Emphasis supplied)

22. In Krishnadas v. State of Kerala

(2019 KHC 191) this Court held thus:

"7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days.

PW1 stated that it was produced at the Crl.A No.1766/2006

Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty." (Emphasis supplied)

23. The learned counsel further contended

that there is nothing to show that specimen

seal was provided to the chemical examiner

for verification and to ensure that the

sample seal so provided was tallied with

the seal affixed on the sample bottle.

There is absolutely no evidence as to the Crl.A No.1766/2006

nature and description of the seal affixed

on the bottle stated to have been used by

the detecting officer and that the same has

been provided to the Chemical Examiner.

Ext.P4, the copy of the forwarding note, is

silent with regard to the name of the person

with whom the sample bottle was sent for

analysis. There is no explanation as to

why the space meant for writing the name of

the official with whom the sample was sent

remained unfilled. In Ext.P4 the learned

Magistrate has failed to write the date on

which he affixed his signature.

       24.     In    Kumaran         v.      State       of

Kerala [2016(4) KLT              718],     this      Court,

while dealing with a similar fact situation, Crl.A No.1766/2006

held thus:

"7.There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove Crl.A No.1766/2006

the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained."

        25.    In     the     instant      case,    it   was

imperative      for     the   prosecution      to   examine

the    Thondi        Clerk    of     the   court    or   the

official who had received the sample bottle

to be delivered to the chemical examiner's

laboratory to establish the tamper-proof

despatch of the sample to the laboratory.

26. In Rajamma v. State of Kerala

(2014(1) KLT 506), this Court held thus: Crl.A No.1766/2006

"The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant". (Emphasis supplied)

27. In the instant case, the prosecution

failed to prove that any specimen impression

of the seal was provided to the Chemical Crl.A No.1766/2006

Examiner for verification. In view of the

fact that there is no evidence to convince

the court that the specimen seal or the

specimen impression of the seal has been

provided to the Chemical Examiner no

evidentiary value can be given to Ext.P5

chemical analysis report. In Vijay Pandey

v. State of U.P (AIR 2019 SC 3569), the

Apex Court held that mere production of a

laboratory report that the sample tested was

contraband substance cannot be conclusive

proof by itself. The sample seized and that

tested have to be co-related.

      28. It     is        well         settled        that      the

prosecution      in    a    case        of     this   nature      can

succeed only if it is proved that the sample Crl.A No.1766/2006

which was analysed in the chemical

examiner's laboratory was the very same

sample which was drawn from the contraband

substance said to have been seized from the

possession of the accused. In the instant

case, the prosecution was unable to

establish the link evidence connecting the

accused with the contraband seized and the

sample analysed in the laboratory. The

accused is entitled to benefit of doubt

arising from the absence of link evidence as

discussed above.

29. The learned Additional Sessions Judge

ignored these vital aspects of the matter.

Therefore, the conviction entered and the

sentence passed by the court below cannot be Crl.A No.1766/2006

sustained. The appellant/accused is

therefore not guilty of the offences

punishable under Sections 55(a) and 55(i) of

the Abkari Act and she is acquitted of the

charges. The appellant is set at liberty.

This Crl.Appeal is allowed as above.

Sd/-

K. BABU JUDGE STK